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Wednesday, October 31, 2007

Why so much Hart?

Thanks to Dan and everyone else at Prawfsblog for letting me guestblog this month. I’ve devoted most of my time to talking about what I believe are some of the peculiarities and prejudices of philosophy of law in the United States. My final post is not about something I think deserves more attention here, but something that deserves less, namely H.L.A. Hart (or, more accurately, his book The Concept of Law).

The Concept of Law was drawn from lectures Hart delivered to undergraduates, and the book was written as a general introduction with them in mind. It has no footnotes – although there are notes at the end of the book that engage in a more direct way with Hart’s predecessors. (Often these notes are the most illuminating part of the book.)

I do not think that The Concept of Law deserves the attention that it currently receives from Anglophone philosophers of law. The book is frustratingly unclear. After almost fifty years there are still serious disputes about what Hart meant, for example, by the distinction between the internal and external points of view or the distinction between having an obligation and merely being obliged. People disagree about what he meant when he described his book as an essay in “descriptive sociology.” I, for one, find the book to be very difficult to teach because of its lack of clarity.

I’m not saying that philosophers of law should not write about what Hart actually meant. There is an important place in the field for the history of the philosophy of law. But the book currently is more than part of the history of the discipline.  Many theories of law are presented as, or in the context of, interpretations of Hart. I don’t think it is a good idea for work in the philosophy of law to have such an exegetical focus.

There are some very good philosophers working in the field today and I could probably come up with up with a list of fifty of them who could craft a clearer account of the essential features of law and legal systems than what can be found in The Concept of Law. True, in many cases the accounts offered would be influenced by or have similarities to what is said in Hart’s book. But they would be lacking the book’s frustrating opacity.

Now I’ve gotten used to my posts generating significant disagreement, and this one probably will as well. But to make it clear what I am not saying:

1) I’m not saying that H.L.A. Hart was not a good philosopher.
2) I’m not saying that The Concept of Law was not a seminal event in the history of the philosophy of law.
3) I’m not saying that Hart did not put some philosophical problems to rest. He offers, for example, the definitive response to Austin’s belief that there must be a legally unlimited sovereign in every legal system.
4) I’m not saying that there is not an answer to the question of what Hart meant. For a plausible account of the internal point of view, see, for example, this article by Scott Shapiro.
5) I’m not saying that, correctly interpreted, The Concept of Law does not offer a correct theory of law. (I don’t think it does, but that is not the source of my current criticism – it is the difficulty determining what the correct interpretation of the book is.)
6) I’m not including in my criticism the posthumously published postscript to the book, which, although unfinished, does not suffer from the lack of clarity of the original book.

Addendum: Brian Leiter claims to find the above remarks “dumbfounding.” But I've made the same point a number of times to other philosophers of law in private conversation and the response has usually been agreement rather than shock.

And no wonder. If you look at publications in the philosophy of law in this country, the percentage that discusses The Concept of Law is extraordinarily high. In no other area of philosophy are current practitioners so concerned with fifty-year old works, much less one fifty-year old work, much less one fifty-year old work that was intended as an introduction to the field for undergraduates. Usually in philosophy people take what is useful – and there is much that is useful in The Concept of Law – and move on. (Indeed, since I thought of Leiter as an example of a philosopher who had moved on, I assumed – naively – that he would be sympathetic to my post.)

Part of the reason for this large current literature on The Concept of Law is that the book leaves so many crucial questions unanswered. I mentioned in my original post the question of the internal/external points of view and let me concentrate on that here. (What I say below should not be news to anyone familiar with the literature on Hart.)

Often Hart makes it sound as if the problem with theories of law that take the external point of view is that they ignore the attitudes of participants in the legal system – as if these philosophers of law adopted some form of strict behaviorism. But Austin did not ignore participants’ attitudes – he just thought that these attitudes could be primarily fear of sanctions.

But if Hart meant by the internal point of view a special form of acceptance of the law (one different from obedience out of fear of sanctions), what is this form of acceptance? No one can be blamed for thinking – as some people have – that Hart meant moral acceptance. There is evidence in favor of this interpretation, although there is contrary evidence as well.

But let’s assume Hart meant something other than moral acceptance. At one point he says the relevant attitude could include “long-term self-interest” (which Shapiro helpfully says would encompass a judge who enforced the law out of a simple desire to get a paycheck). But then it is unclear why the person who obeys only from fear of sanctions (which is also a self-interested motivation) is not adopting the internal point of view.

It is true that Hart thinks that the internal point of view would express itself in criticism of deviators. But it is not clear why those who obey solely out of long-term self-interest would criticize deviators. If I am applying the law simply to get a paycheck, what is my reason for criticizing a colleague who doesn't enforce the law because, being independently wealthy, he doesn't need a paycheck? Of course, I may criticize deviators because it is a condition for getting my paycheck, but someone also might criticize deviators to avoid sanctions.

The point is not whether these problems might be solved and some satisfactory account of the internal point of view arrived at. The point is that Hart manifestly failed to provide us with a clear statement of what the internal point of view is, even though it is absolutely crucial to his argument. If he had provided us with such a statement, we wouldn't be still talking about this issue fifty years later.

Another problem is why this attitude of acceptance is a necessary condition for the existence of a legal system. Why, exactly, is a system in which most people, including officials, act in conformity with the law only because of a fear of sanctions not a legal system?? (The question is a conceptual one – it does not matter that such a system would be unstable.) I frankly see no reason why it is not, but, once again, whether Hart's position can be defended is not the issue. The point is that he fails to defend it.

I don’t blame Hart for these failures. The book was written as a general introduction to the philosophy of law for undergraduates. It’s amazing that it had the amount of ground-breaking material in it that it did.

But given that most of what I read by current philosophers of law is much clearer than The Concept of Law, it is natural to ask the question (which was the question of my original post): Why are philosophers of law - as opposed to historians of the philosophy of law - still so focused on The Concept of Law? Why haven’t we moved on?

Indeed (and here I'm self-plagiarizing a comment I made in the thread), there is a real irony to the reception of Hart. He wanted to professionalize the philosophy of law - to take it away from discussion about what great men of the past thought. In some respects of course he did succeed in professionalizing the discipline. The philosophy of law looks very different now, and in the English-speaking countries Hart is really to thank for this. But in one respect he failed. He became one of those great men.

We would do greater justice to Hart's legacy by talking about him less.

Posted by Michael S. Green on October 31, 2007 at 04:36 PM in Legal Theory | Permalink

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Given the 6 caveats, what is your point? (I mean that sincerely. I'm not getting it.)

Posted by: Jackson Pollock | Oct 31, 2007 5:33:26 PM

I guess that's what happens when you try to ward off criticisms in advance! This is my point: People doing the philosophy of law should not spend time trying to figure out what Hart meant. Because Hart was so frustratingly unclear, it's not worth the effort. They should just offer their own theories of law and leave Hart to the historians of their discipline.

Posted by: Michael Steven Green | Oct 31, 2007 5:57:17 PM

"Because Hart was so frustratingly unclear, it's not worth the effort [to figure out what he meant]".

That's sometimes a good principle. When I'm unclear, for example, it's probably not worth spending huge amounts of time trying to figure out what _I_ meant. But it's a funny rule in philosophy, at least if we think the work is good philosophy. Philosophers spend lots and lots of time trying to figure out what, say, Kant or Wittgenstein or Heidegger or Hegel or Sellers meant, after all, and all of them are, on any normal standard, I'd think, much more unclear than Hart. Some do this for purely historical reasons, of course, but others do it because they think there is yet gold to be found in these works, that the author was on to something and that trying to further clarify these ideas can help us get the right view. Now, maybe Hart's ideas are not that good and so there's no point in trying to figure out what they are, but that's a different point than what you're saying here. If that's the point it's better to just argue that he's largely mistaken and so trying to figure out what he has to say is likely to have a low pay-off. But surely merely being even frustratingly unclear is no reason to not spend time on a philosopher if you think he or she is on the right path (or wrong in interesting and instructive ways.)

Posted by: Matt | Oct 31, 2007 7:55:13 PM

Matt - I agree that the history of philosophy can be very fruitful for current work in the field. But I can't think of a single area of philosophy that is as focused on a past work (and a single book at that) as the philosophy of law. That does not happen in the philosophy of language, or metaethics, or the philosophy of mind. People come up with their own approaches.

As for my claim that it is not worth the effort to try to understand Hart (and that was the simplified version of my claim for someone who had trouble understanding the qualified version - I wish you would quote from my original post), it is worth the effort insofar as he is an interesting subject in the history of philosophy and it is worth the effort in the areas where he seems to have gotten things right (and I agree that there are some areas). But there are many crucial areas where there is still, after fifty years, substantial disagreement about what he meant. The book, written for undergraduates, simply does not do a good job answering our questions. In those areas, we should, as philosophers of law (not historians of the philosophy of law), set the book aside.

Posted by: Michael Steven Green | Oct 31, 2007 9:16:35 PM

I guess I am of two minds with regard to Michael's post. On the one hand, I feel like there can be a tendency, at least in some jurisprudential discussions, to lose sight of what the substantive philosophical problems are, and why they are even being addressed in the first place. When this happens, I guess I do find many exegetical battles less than helpful. On the other hand, I tend to think that a crisp understanding of the problems, and of the available means to their solution, is significantly helped by close attention to good historical work. Attention to this work can help us sharpen distinctions and develop resources for dealing with problems, so that we do not always have to reinvent the wheel.

If I read Rawls correctly, this was roughly the approach that he took with regard to the history of political philosophy. And I think Hart himself had a similar view. After all, he spent quite a bit of time delving into historical predecessors and obtaining inspiration from them (see, e.g., Bentham), even when he disagreed with them (see, e.g., Austin). A lot of really good work in normative philosophy seems to me to have been significantly helped by this kind of approach as well (see, e.g., Korsgaard, Darwall, Railton, Herman). But there just hasn't been as robust a history of engagement with jurisprudential questions. One likely reason for this is that the modern law school, which is now attached to a major university and actively promotes interdisciplinary thought, is a rather recent historical phenomenon. (The apprenticeship system of the 19th century wasn't particularly well suited to producing legal philosophers.)

So maybe the real issue is not how much attention is being paid to Hart, but whether we are paying the right kind of attention to his work. In my view, we should try to start with a clearer understanding of the philosophical problems that we are trying to address, along with a better explanation of why a philosophical account of the law is even needed to answer these problems, when we turn to people like Hart. (This would help in other ways too, because it would help us explain to non-philosophers why our field is important.) In other words, I think our examinations of figures like Hart (along with the related exegetical debates) might profit from more explicit attention to how this engagement helps us with contemporary problems. (And I recognize, of course, that there is quite a bit of good work out there that does this already.)

Now, I suppose it's also true that many discussions of contemporary problems could probably be fruitfully entered into into without quite so much discussion of Hart. But I think that changes like this will likely happen fairly naturally as the legal academy starts producing a more consistent stream of quality work in the philosophy of law. (The field still feels a bit like it is learning to stand and walk to me--at least when compared to moral and political philosophy.)

Posted by: Rob Kar | Oct 31, 2007 10:14:35 PM

Rob - I think your comments are very much in the spirit of my post. The current approach to Hart is a sign that the philosophy of law is still in its infancy. (An alternative theory is that it is in its dotage - Hart got everything so right that the history of the philosophy of law is pretty much all that's left. I don't think that's true though.)

There is a real irony to the reception of Hart. He wanted to professionalize the philosophy of law - to take it away from discussion about what great men of the past thought. In some respects of course he did succeed in professionalizing the discipline. The philosophy of law looks very different now, and in the English-speaking countries Hart is really to thank for this. But in one respect he failed. He became one of those great men.

We would do greater justice to Hart's legacy by talking about him less.

Posted by: Michael Steven Green | Nov 1, 2007 2:57:47 AM

Michael,
I still don't see why the split you make, that the attention on Hart shows that philosophy of law is either in its infancy or its dotage, should be the right one. As Rob points out, lots of very good moral philosophers work in large part by reacting to figures that they take to be the important ones in the field. They are not just doing history of ethics nor do they need to think that, say, Kant got everything right, merely that his ideas are very fruitfully interacted with as a way of _doing_ moral philosophy. That seems largely right to me. It also seems to be what many, perhaps most, legal philosophers are doing when they interact with Hart. But, this type of action doesn't fit well into either of your categories (just history of just figuring out exactly what the great man thought.) Now, I take it that you think Hart is wrong enough to not think this is useful. That's a defensible view, but it's one that would need much more (and a rather different, I think) argument than you've got here.

Posted by: Matt | Nov 1, 2007 7:19:37 AM

I have a post up at:
http://lsolum.typepad.com/legaltheory/2007/11/too-much-hart-o.html

Posted by: Lawrence Solum | Nov 1, 2007 8:17:32 AM

People doing the philosophy of law should not spend time trying to figure out what Hart meant.

This seems totally wrong. I do not understand how you can teach a course on jurisprudence without getting into the Fuller-Hart-Raz-Dworkin series of debates, and I do not understand how you can comprehend that series of debates without trying to figure out what Hart meant. And, given your investment in Kelsen and deontic logic, this seems a mighty odd demand to make of other philosophers of law, given the greater instrumental value of Hart's work -- evident by the many philosophers of law who find studying him useful.

Posted by: Still not getting it | Nov 1, 2007 10:04:39 AM

Of course Hart should be a central figure in a philosophy of law course. The history of an area of philosophy is absolutely crucial in any introductory course on that area of philosophy. The question is how important The Concept of Law should be for people doing current work in the philosophy of law – work that intends to move the field forward.

If you look at publications in the philosophy of law in this country, the amount of it that discusses The Concept of Law is extraordinarily high. There simply is nothing comparable in any other area of philosophy. The philosophy of mind is not focused on a fifty year old book (much less an introductory book written for undergraduates).

Now one explanation of this is that Hart simply got things so right that we must talk about him even when moving the field forward. For many philosophers of law, Hart’s general idea of a rule of recognition is really a precondition for doing anything in the field. I don’t blame these people at all for talking about a rule of recognition in their work.

But the discussion of The Concept of Law that one finds tends to be about aspects of the book concerning which there is disagreement. Exactly what types of attitudes of acceptance on the part of officials did Hart think were needed for a rule of recognition to come into being? In what sense did he think obligations (the things that Austin allegedly could not account for) come into being when there is a rule of recognition? Are these obligations reasons for action? Are they merely claimed reasons for action? Do these obligations apply to private citizens, not merely officials? Should the answer depend upon the perspective we are taking? Plus there are the methodological issues. Hart claimed to be offering an account of the content of the concept of law. What was Hart’s view about conceptual analysis? And so on.

Now I’m not saying that these are not interesting questions (nor am I saying that they cannot be answered), but I can’t see how figuring them out is that crucial to moving the field forward. So I see no good explanation of the current level of discussion of The Concept of Law.

By the way, I'm surprised that Brian is is so offended by my post. I actually thought of him as an example of someone in the field who is not so focused on Hart's book.

Posted by: Michael Steven Green | Nov 1, 2007 10:37:18 AM

The philosophy of mind is not focused on a fifty year old book (much less an introductory book written for undergraduates).

That is because the emerging field of philosophy of mind depends on advancements in cognitive science. I do not see an analog here to legal systems.

Now one explanation of this is that Hart simply got things so right that we must talk about him even when moving the field forward. For many philosophers of law, Hart’s general idea of a rule of recognition is really a precondition for doing anything in the field. I don’t blame these people at all for talking about a rule of recognition in their work.

Okay. Fine.

But the discussion of The Concept of Law that one finds tends to be about aspects of the book concerning which there is disagreement. Exactly what types of attitudes of acceptance on the part of officials did Hart think were needed for a rule of recognition to come into being? In what sense did he think obligations (the things that Austin allegedly could not account for) come into being when there is a rule of recognition? Are these obligations reasons for action? Are they merely claimed reasons for action? Do these obligations apply to private citizens, not merely officials? Should the answer depend upon the perspective we are taking? Plus there are the methodological issues. Hart claimed to be offering an account of the content of the concept of law. What was Hart’s view about conceptual analysis? And so on.

Doesn't this cut against your philosophy of mind example? It seems the more empirical (or sociological) one has to be to answer conceptual legal questions, the more one should return to Hart.

Posted by: Getting it a bit more | Nov 1, 2007 10:47:28 AM

Michael, Brian Leiter will see you outside:

http://leiterlegalphilosophy.typepad.com/leiter/2007/10/michael-green-1.html

Posted by: Bruce Boyden | Nov 2, 2007 2:07:34 PM

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